The latest draft of the Personal Data Protection Bill 2023 has confirmed that there will be no distinction made for sensitive or special personal data. Provisions that attempted to protect sensitive data with respect to sex life, sexual orientation, transgender or intersex status, caste or tribe and religious or political belief or affiliation are now no longer part of the Bill. This reveals not just a deprioritisation of social equality in the short term, but is also an apt moment to talk more broadly about approaches to equality. Despite a trend across the world, as well as India, to introduce anti-discrimination or equality laws that apply ‘horizontally’, in the private sector, the Personal Data Protection Bill 2023’s omission might indicate the government’s desire to move away from this. Here, I use this moment to go back and discuss a subject-specific approach to introducing horizontal equality laws in India before returning to the missed opportunity in the 2023 draft.
Unsuccessful Attempts for a Comprehensive Anti-Discrimination Bill
In India, you were only protected from discrimination by the State. Article 15 of the Indian Constitution prohibits discrimination on the basis of religion, race, caste, sex of place of birth. This has since been interpreted to also include gender identity and sexual orientation through the Supreme Court’s jurisprudence in NALSA v Union of India and Navtej Singh Johar v Union of India. However, if a private employer were to reject your job application solely because you belonged to an oppressed caste, the law would not be able to help you. Various countries such as the United Kingdom and South Africa have enacted anti-discrimination laws that address precisely such claims in the private sector. They also include more developed tests for discrimination, such as indirect discrimination and intersectional discrimination, enforcement mechanisms and introduce a range of other duties, rights and claims including for compensation.
In India, horizontal anti-discrimination laws have been a long time coming. Shashi Tharoor and Arvind Abraham have written that it was recommended by the Sachar Committee in 2006, and then approved by the UPA Cabinet shortly before the 2014 election. But, the NDA did not take up the issue. Shashi Tharoor introduced a Private Members’ Bill in 2016, but it did not receive the government’s cooperation. The Centre for Law & Policy Research introduced drafts of the Equality Bill in 2019 and 2021, which have not yet been taken up by any governments. Manifesto pledges by both the Government and Opposition in Kerala reportedly contain a promise to implement an equality law. But none of these efforts have proven successful.
The Subject-Specific Approach
Limited Early Approaches: SC/ST Act and RPD Act
There are some existing laws that aim to improve equality such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 which cover mostly instances of violence or harassment and some discrimination when it applies to access or entry to public places and establishments. Similarly, the Rights of Persons with Disabilities Act 2016 provides for radical potential for equality through its doctrine of reasonable accommodation, especially as given life by the social model of disability recognised by the Supreme Court in Vikash Kumar v UPSC. However, those provisions only apply to government bodies. This changed with two legislations that took an explicitly horizontal anti-discrimination approach: the Mental Healthcare Act 2017 and the Transgender Persons (Protection of Rights) Act 2019.
A First Attempt: Mental Healthcare Act
Sections 18 and 21 of the Mental Healthcare Act provides for the right to equality and non-discrimination as well as equal access to mental healthcare irrespective of gender, sex, sexual orientation, religion, culture, caste, social or political beliefs, class, disability or any other basis. Notably, this is a list that is broader than the Constitution’s and also provides for a residuary clause suggesting that analogous grounds can be included. This applies only in the context of mental health establishments and mental health practitioners. Sections 66-68 provide State Mental Health Authorities with the power to investigate any contraventions of the Act and revoke recognition of establishments that violate these rights. Further, under section 108, mental health practitioners can be charged with an offence liable to up to six months imprisonment on the first attempt.
A Second Shot (in the Dark): Trans Act
The second attempt to provide for horizontal discrimination provisions applied only for discrimination against transgender people under the Trans Act, defined in section 2(k) as those whose gender does not align with their gender assigned at birth, which includes transgender men and women, indigenous socio-cultural identities, intersex and genderqueer persons. This extended to all establishments, including private ones as defined in section 2(b). It also prohibited discrimination in multiple fields listed in section 3: education, employment, healthcare, public services/facilties, property, movement and holding office.
The provisions for enforcement are different under this Act. Section 11 requires all establishments to designate a person as a complaint officer, which under rule 13 of the Central Rules, must enquire into complaints within 15 days and establishments must act within 15 days of receiving a report. Another grievance redressal mechanism mandated by rule 13 would operate at the State level and investigate complaints within 30 days. Other provisions included those under rule 11: all establishments ought to publish a policy and the government should take ‘adequate’ steps towards non-discrimination. Although the Act took a radical leap in terms of non-discrimination protections being applied horizontally in multiple fields, because of the vague and highly decentralised nature of this enforcement mechanism without dedicated resources to back it up, the uptake has been very slow. Many petitioners have had to approach High Courts for setting up complaints mechanisms within State establishments, with private ones being far from doing so.
Sharpening the Subject-Specific Approach
This need to incorporate equality in our horizontal interactions as citizens with one another ought to be natural in a country with a Constitution that places fraternity at its core. Our Constitution always saw the horizontal relation as worthy of legal regulation in provisions like Article 15(2), 17, 23 and 24 that talked about rights not just against the State but rights guaranteed against others (albeit indirectly, through the State as broadly understood in law). But while a comprehensive anti-discrimination law continues to look distant, perhaps the route of incorporating horizontal provisions in subject-specific legislation should be taken seriously. The Disability Act 2016 was a missed opportunity which the Mental Healthcare Act and Transgender Act picked up on. It becomes important for Civil Society and government to assist those who have grievances under these legislations and raise awareness about provisions of horizontal rights granted under them. The designated agencies should be proactive in making these complaints mechanisms rich centres to develop a quasi-legal equality jurisprudence. This is hard to do if the institutions are not truly independent and prone to political tampering and ineffectuality. To make these centres of equality would require some design corrections for independence, genuine backing with resources and powers.
Though these laws do not contain an explicit definition of discrimination, the Court has infused discrimination and equality in the Constitution with tests for indirect discrimination in Lt Col Nitisha v Union of India and intersectionality in Patan Jamal Vali v State of Andhra Pradesh. Recognising the principle of equality should allow a broad reading of anti-discrimination provisions, these tests can also be read into these statutes. Other rights and duties that feature in equality legislation across the world such as compensation, equality impact assessments, publishing inequality data, and more should also be considered here. Instead of drawing from this rich well of opportunity, the focus has shifted to removing equality thinking from such laws completely.
Personal Data Protection Bill 2019 2023
The 2019 draft of the Personal Data Protection Bill which followed extensive deliberations by the Srikrishna Committee had a special classification of data. Under clause 3(36), ‘sensitive personal data’ included those related to sex life, sexual orientation, transgender or intersex status, caste or tribe and religious or political belief or affiliation. The motivation for including this can be gleaned from the other types of sensitive data such as financial and biometric information and a provision to classify other data as sensitive under clause 15. That clause focused in particular on the risk of ‘significant harm’ to either a data principal or a class of data principals. The definition of harm under clause 3(20) notably included not just physical or mental injury but ‘any discriminatory treatment’ and denial or withdrawal of a service, benefit or good because of an evaluative decision about a data principal.
While these provisions are inspired by a similar distinction in Article 9 of the EU’s GDPR, the 2019 draft went further with its equality thinking in including more grounds, as well as explicitly noting discrimination as a type of harm. This was also partly drawn from section 43A of the Information Technology Act 2000 which allowed compensation for wrongful loss or gain caused due to negligence with sensitive personal data. However, sensitive personal data was there defined by the Government in consultation with professional bodies, and had no explicit link to discrimination or equality.
The 2019 draft, by design, recognised the inequalities in our society at a horizontal and fraternal level and understood these often occur on certain axes of oppression. Information connected to those modes of oppression were therefore accorded extra protection, including the need for more explicit and informed consent under clause 11(3). Exceptions to data protection in matters such as employment were not allowed for sensitive personal data. Some significant entities would also have to conduct special data assessments in some cases of possible significant harm.
While the bill did not actually provide for any protections against discrimination per se, through the concept of risk of harm, it is able to locate and prevent methods by which discrimination can take place. This was a great advance for the subject-specific approach that was also backed with enforcement by a body to hear complaints in the Data Protection Authority and provisions for financial penalties. For the first time, it also allowed claims for compensation in cases of harm under clause 64. This would mean where a breach occurred and discrimination was faced, compensation could be claimed as a result of the breach.
The 2023 Law and His Her Failings
However, it now appears that the third law with a subject-specific horizontal equality approach will not be the Personal Data Protection Bill, if anything. Following the scrapping of the old drafts in 2022, the version introduced in the Lok Sabha as of 3rd August 2023 has completely omitted the sensitive personal data distinction. Along with this has gone any reference to the idea of harm, or discrimination and surprisingly, while it allows the Data Protection Board (weakened from the 2019’s Authority) to impose penalties, it not just removes the compensation suggested under the 2019 draft but repeals compensation that could be claimed under section 43A of the IT Act. This rather inexplicably takes out root, branch and soil, the deeper equality thinking that was built into the 2019 Bill.
It is ironic that when the 2022 draft came out, a large number of articles were written on how the pronouns ‘she’ and ‘her’ were used to signify all persons regardless of gender for the first time, as ‘he’ and ‘him’ often are. While the draft of the bill can transition its pronouns and receive applause for it, a person’s transgender status in the material world will not be subject to the heightened protections it warrants like other sensitive personal data.
Mihir Rajamane 
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